Citation Nr: 9905555
Decision Date: 02/26/99 Archive Date: 03/03/99
DOCKET NO. 98-03 447 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
Entitlement to restoration of a 100 percent schedular
evaluation for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
The appellant and his wife
ATTORNEY FOR THE BOARD
Nancy R. Kegerreis
INTRODUCTION
The veteran served on active duty from December 1968 to July
1971.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 1998 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana, which reduced the veteran's evaluation for PTSD
from 100 percent to 50 percent, effective April 1, 1998.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
developed.
2. Material improvement in disability due to PTSD was shown
at VA examinations in May 1997 and December 1997.
3. As of April 1, 1998, PTSD resulted in no more than
considerable social or industrial impairment or occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory;
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
CONCLUSION OF LAW
The criteria for a reduction in the evaluation of the
veteran's PTSD from 100 percent to 50 percent, effective
April 1, 1998, have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.10,
4.139, Diagnostic Codes 9411 and 9440 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the claim for entitlement to restoration
of a 100 percent evaluation for PTSD is well grounded within
the meaning of 38 U.S.C.A. § 5107. That is, the veteran has
presented a claim which is plausible, meritorious on its own
or capable of substantiation. Proscelle v. Derwinski, 2 Vet.
App. 629 (1992). The Board is also satisfied that all
relevant and available facts have been properly developed and
that no further assistance to the veteran is required to
comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107.
In May 1994, the RO increased the veteran's rating for PTSD
from 30 percent to 70 percent, effective from July 2, 1993,
based essentially on a July 1993 VA psychiatric consultation
report and a March 1994 VA psychiatric examination. The 1993
report by a clinical psychologist noted that the veteran was
under considerable stress at work, but was not considered
suicidal or homicidal. At the beginning of the session he
was angry and somewhat depressed, but his affect brightened
before the session ended. The diagnoses were adjustment
disorder with mixed disturbance of emotions and chronic PTSD.
A March 1994 VA mental disorders examination noted that the
veteran had been unemployed since November 1993. He said
that he had a lot of confusion in his thinking, was depressed
and paranoid, and was particularly upset after being fired
from a sheriff's department. The mental status examination
described complaints of flashbacks and voices calling for
help. The veteran had difficulty in answering simple
questions, difficulty with concentration, and reported
impairment in daily activities. He had had trouble relating
to others, especially in relation to the sheriff's
department. The examiner felt that the veteran appeared
totally impaired as far as his ability to work, due to
increasing flashbacks, hearing voices, and suicidal ideas.
Although he was currently on medication, he remained anxious,
depressed, and paranoid. The Axis I diagnosis was PTSD with
anxiety and depression; alcohol abuse; and paranoid
personality.
Based on the above medical evidence, in April 1995, the RO
granted a total rating for compensation on the basis of
individual unemployability from August 1994, without a
finding that the level of disability was permanent, thus
allowing for future examinations to confirm the level of
disability. In May 1996, the RO confirmed a 100 percent
evaluation, but revised its earlier decision on the basis of
clear and unmistakable error, indicating that, since the
veteran had been assigned a 70 percent evaluation and such
mental disorder precluded him from securing or following a
substantially gainful occupation, his mental disorder should
have been assigned a 100 percent schedular evaluation. See
38 C.F.R. § 4.16(c) 1996. The veteran was informed of this
determination, and of his appellate rights. He did not
appeal.
A report of VA examination in April 1996 showed that the
examining psychologist opined that the veteran sought to
portray himself as extremely dysfunctional, much more so than
was supported by objective examination findings.
In August 1997, the RO proposed to decrease the evaluation
for PTSD to 50 percent. This decision was based on a May
1997 full VA examination for PTSD, with a review of the
veteran's claims file before completion of the assessment.
History as reported by the veteran indicated that he had not
been a good student and had dropped out of high school in the
eighth grade at the age of 16. At the age of 17 he enlisted
in the Army. Although he had wanted Special Forces, he was
sent to engine repair school as a result of his lower test
scores. In Vietnam he was initially put in a combat engineer
brigade, but then became an interpreter because he knew some
French. He was wounded twice, in the leg and in the groin.
Subjective complaints were numerous, including depression,
unexplained fits of rage, lack of goals or future,
nightmares, and inability to make decisions.
Objective findings revealed that the veteran's speech
patterns were clear and coherent, although it appeared that
he had some problems making decisions. He seemed to be
somewhat antisocial, overly cautious, hypervigilant, and
preferred to stay by himself. He was not suicidal or
homicidal. His personal hygiene was satisfactory. He was
fully oriented and his past memory appeared to be within
normal limits, although his recent memory was rather poor.
He stated that he would like to go back to Vietnam to find
the peace and quiet he longed for. Although he reported
panic attacks with shaking, no symptoms of this nature were
observed during the interview. The examiner commented that
an extensive psychological survey in April 1996 had suggested
that veteran had been trying to exaggerate his symptoms and
was believed to have been malingering during the examination.
Repeated diagnostic and psychological testing during the
present examination suggested serious validity questions and
generated a feeling in the examiner that the veteran might
have been consciously trying to exaggerate his symptoms in an
attempt to achieve the maximum from his veteran's benefits.
The Axis I diagnosis was PTSD, by history; malingering. The
Axis II diagnosis was borderline personality disorder. The
Axis IV diagnosis was unemployment; relationship problems;
and an Axis V diagnosis provided a current Global Assessment
of Functioning of 50, with the highest during the past year
being 70. The examiner concluded that the veteran did
experience symptoms related to PTSD, even though he tended to
exaggerate them. While malingering could not be ruled out,
it was apparent that he was quite emotionally disturbed,
although this could relate more to personality factors than
to actual psychopathology.
In response to the proposal to decrease his benefits, the
veteran submitted letters, dated in August 1997, from his
wife and mother. Both attested to the fact that the veteran
was depressed, paranoid, suicidal, and homicidal. His wife
stated that he was always complaining and did not get along
with her children and grandchildren. His mother reported
that he like to be alone and described panic attacks in
certain situations. Both women attributed the veteran's
psychiatric problems to experiences in Vietnam.
A December 1997 VA mental status examination disclosed a
lengthy reported combat history, significant for an incident
in which the veteran had disappeared for a couple of days,
then resurfaced, and returned to security duty. He was then
returned to direct combat where he said he had been wounded
in the mouth and groin. Following this, he met his first
wife, who was Vietnamese, and was assigned to work with a
civilian contractor. After discharge, he had held a number
of jobs, principally as a corrections officer. In 1990-93,
he worked for the local sheriff, but was forced to resign
because he reported irregularities within the department. He
stated that he had been unable to obtain employment since
that time because potential employers had either found out he
was a whistleblower or thought he had a bad attitude.
The veteran's subjective complaints included early morning
awakening, violent nightmares, flashbacks, panic attacks, and
spontaneous crying spells. He said he missed Vietnam.
Objective examination revealed that his affect was anxious
and a little angry at times. He was appropriately dressed
and cooperative with the interviewer. He was fully oriented,
verbal, and alert. He said he had occasional suicidal
ideation, but denied homicidal ideation. He reported
paranoia and hearing voices occasionally when alone. His
concentration and judgment appeared to be impaired, although
he had no significant memory impairment. Reality testing was
thought to be a little tenuous.
The examiner found the veteran's symptoms atypical and would
have liked to hospitalize him for examination purposes,
except that proper psychiatric resources for adequate
evaluation were not available. He noted enough elements to
make a diagnosis of PTSD, commenting that any doubts he might
have in that regard had been resolved in favor of the
veteran. He found it problematical, however, as to the
actual degree of impairment due solely to the PTSD diagnosis.
His Axis I diagnosis was chronic PTSD; rule out anxiety
disorder, caffeine intoxication. The Axis II diagnosis was
to rule out personality disorder, not otherwise specified;
and the Axis IV diagnosis was unemployment. The Axis V,
Global Assessment of Functioning, was 60 (occasional panic
attacks, insomnia, anxious affect, few friends, conflicts
with others). A December 1997 addendum to this examination
stated that the veteran had refused to undergo hospital
admission for observation and evaluation because, he said,
his mother was seriously ill.
In January 1998, the RO reduced the veteran's 100 percent
evaluation for PTSD to 50 percent from April 1998, and in
October 1998, the veteran and his wife testified at a video
hearing before the undersigned Member of the Board. He said
that he had last been gainfully employed in 1993 as a
Lieutenant Watch Commander in a sheriff's department, but had
had to leave this employment after having informed Federal
authorities as to irregularities in the department. As a
consequence, he would skip his medications and stay in his
office, resulting in shaking, lack of concentration, and
anger. His wife confirmed the veteran's statements, adding
that she found him to be very paranoid, jumpy, and nervous.
The veteran stated that he kept various weapons strategically
located in his house because he felt he needed protection
from "bad cops," the ones he had tried to put in jail. He
did not like to associate with people. He reported that in
Vietnam he had been a military advisor, that he was
bilingual, and that he had been wounded twice. He stated
that he had problems now with insomnia. He maintained that
he had been able to deal with things in Vietnam, but was
unable to deal with them over here. He said he often thought
of killing other people. He said he was not a malingerer,
despite how people thought of him, and he wished they would
send him back to Vietnam.
Presented subsequent to the hearing was a private
psychological evaluation, dated in February 1998, from
Kenneth Binns, Ph.D., who performed a psychological
assessment utilizing the Minnesota Multiphasic Personality
Inventory-2 (MMPI-2), the Millon Clinical Multiaxial
Inventory-III (MCMI-III), and a diagnostic clinical
interview. Psychological testing by means of the MMPI-2
resulted in an invalid protocol due to over-endorsement of
psychopathology. The malingering scales of the MMPI-2
suggested that the veteran had not made a conscious effort to
"fake bad", but rather that the significant elevations were
due to his current fragile emotional state. The MCMI-III
also reflected a current emotional state resulting in a
profile often clinically viewed as a cry for help; it
suggested that the veteran tended to be a loner, with
difficulty in establishing meaningful relationships, and that
he tended to view things negatively and to expect
disappointments. Essentially, the profile suggested chronic
depression, which he coped with through a rich fantasy life.
On clinical interview, the veteran appeared wearing
camouflage and military-type fatigues. He was well oriented
to person, place, time, and current situation. His mood
appeared depressed and his affect sad. He stated that he
still suffered extreme symptoms of PTSD and was unable to
hold a job. He verbalized feeling hopeless about his current
situation and powerless to make any positive changes. He
expressed the desire to return to Vietnam. He described
survivor guilt related to friends he had lost in Vietnam and
stated that he often wished he were also dead. He said that
he could not survive if he lost his disability income.
Overall, he appeared clinically depressed and psychologically
fragile at this time, but indicated that he had no plans to
harm himself currently. The Axis I diagnosis was PTSD by
history; dysthymia,
An October 1998 letter from Dr. Binns noted that he had been
seeing the veteran for monthly therapy sessions beginning in
April 1998. During most of sessions, the veteran appeared
sad and depressed, recounting feeling overwhelmed by various
stressors including his treatment by the Veterans
Administration, past regrets concerning his ex-wife, and
ongoing conflicts with his present wife and children. He
tended to expect failure at whatever he attempted, and this
expectation often became a self-fulfilling prophecy for him.
He lived excessively in the past and engaged in a rich
fantasy life. He often talked about going back to Vietnam in
a wishful way and stated that he had been happier there than
anywhere else. At times, he verbalized that he wished he had
been killed in Vietnam. He felt useless and totally defeated
by forces outside of his control. In summary, poor self-
esteem, internalized feelings of failure, and fear and
anxiety remained part of the overall clinical picture.
The issue currently before the Board is whether the reduction
in the rating for the veteran's PTSD from a 100 percent
schedular rating to a 50 percent rating was proper. It must
first be determined whether the RO was procedurally correct.
Where a reduction in evaluation of a service-connected
disability or employability status is considered warranted
and the lower evaluation would result in a reduction or
discontinuance of compensation, a rating proposing the
reduction or discontinuance is to be prepared, setting forth
all material facts and reasons. The veteran is to be
notified at his latest address of record of the contemplated
action and furnished detailed reasons therefor, and is to be
given 60 days for the presentation of additional evidence to
show that compensation payments should be continued at their
present level. 38 C.F.R. § 3.105(e). The Board finds that
the RO correctly complied with this regulation. In January
1998, the RO reduced the PTSD evaluation from 100 percent to
50 percent, effective April 1, 1998. The veteran appealed,
requesting a videoconference hearing before a Member of the
Board.
The record indicates that the veteran was rated 100 percent
for PTSD from July 2, 1993 through March 31, 1998, a period
of less than five years. Therefore, 38 C.F.R. § 3.344 is not
for application. 38 C.F.R. § 3.344(c).
However, 38 C.F.R. § 3.343, pertaining to continuance of
total disability ratings, is for application in this case.
In pertinent part, this regulation provides that total
disability ratings, when warranted by the severity of the
condition, will not be reduced without examination showing
material improvement in physical or mental condition.
Examination reports showing material improvement must be
evaluated in conjunction with all the facts of record, and
consideration must be given particularly to whether the
veteran attained improvement under the ordinary conditions of
life. 38 C.F.R. § 3.343(a).
Disability evaluations are administered under the Schedule
for Rating Disabilities which is designed to compensate a
veteran for reductions in earning capacity as a result of
injury or disease sustained as a result of or incidental to
military service. 38 U.S.C.A. § 1155; Bierman v.
Brown, 6 Vet. App. 125, 129 (1994). In evaluating a
disability, the VA is required to consider the functional
impairment caused by the specific disability.
38 C.F.R. § 4.10. Each disability must be evaluated in light
of the medical and employment history, and from the point of
view of the veteran's working or seeking work. Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1991).
The criteria for rating the mental disabilities were changed
effective in November 1996. Where, as in this case, the
legal criteria change, the Board must consider the claim
under both the old and the new criteria, and apply the
version favorable to the appellant. See Karnas v. Derwinski,
1 Vet.App. 308 (1991). Under the criteria in effect prior to
November 7, 1996, a 50 percent evaluation for PTSD would be
assigned under Diagnostic Code 9411 when the ability to
establish or maintain effective or favorable relationships
with people is considerably impaired and by reason of
psychoneurotic symptoms the reliability, flexibility and
efficiency levels are so reduced as to result in considerable
industrial impairment. A 70 percent evaluation would be
assigned when the ability to establish and maintain effective
or favorable relationships with people is severely impaired;
and the psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. A 100 percent evaluation would
be assigned where the attitudes of all contacts except the
most intimate are so adversely affected as to result in
virtual isolation in the community; where there are totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality; and where the individual is
demonstrably unable to obtain or retain employment.
Under the revised regulations pertaining to mental
disabilities, which became effective in November 1996, PTSD
is currently evaluated under 38 C.F.R. § 4.130, Diagnostic
Code 9411, referable to Diagnostic Code 9440, the General
Rating Formula for Mental Disorders. With total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living;
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name, a 100 percent
evaluation is warranted. If there is occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control; spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances; inability to establish and maintain
effective relationships, a 70 percent evaluation is
warranted. If there is occupational and social impairment
with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory; impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships, a 50
percent evaluation is warranted.
Having reviewed the evidence and the appropriate regulations,
the RO found that the veteran's symptoms had improved and
that the evidence failed to show that the veteran had the
symptomatology which would warrant an evaluation of more than
50 percent. The Board has compared the pre-reduction
psychiatric examination with the examinations that provided
the basis for the reduction. The earlier examiner found
objective evidence of difficulty in answering simple
questions, difficulty with concentration, marked impairment
in daily activities, quite severe difficulty in relating to
others, and inefficacy of medications. It was also opined at
that time that the veteran's symptomatology had resulted in
total impairment in his ability to work. PTSD symptomatology
of such nature and severity is 100 percent disabling under
both the old and the revised rating criteria.
Examinations that provided the basis for the reduction do not
reveal symptomatology suggesting more than 50 percent
evaluation. These examinations (in May and December1997)
showed estimates of recent and current psychiatric impairment
( GAF scores) ranging from mild to moderate to serious.
There was no psychiatric opinion of total occupational
impairment due to PTSD, as had been the case on examination
prior to the assignment of the 100 percent rating.
Examination in May 1997 suggested that some psychiatric
impairment was due to disorders other than PTSD, while the
examination in December 1997 found only moderate psychiatric
impairment overall. (The veteran declined the period of
observation and evaluation that was deemed necessary to
determine the impairment due solely to PTSD). In any event,
comparison of the examinations in 1997 with the examination
in 1994 shows material improvement in PTSD insofar as
psychological, social and industrial impairment is concerned.
In this regard, Dr. Binns raises some questions about the
interpretation of psychological tests which were part of the
VA examination in 1997, but it must be emphasized that
nowhere does Dr. Binns state that there is total social or
occupational impairment due to PTSD. He describes the
veteran as having difficulty with meaningful relationships,
but does not indicate social isolation. He also expresses
the opinion that the veteran should be provided supportive
services in connection with work, an opinion consistent with
the belief that there was less than total occupational
impairment due to PTSD.
Current examinations thus suggest that a 50 percent
evaluation is more appropriate under the old and the revised
rating criteria. The veteran currently shows occasional panic
attacks, anxiety, few friends and conflicts with others.
Nonetheless, he also exhibits no more than moderate
psychological, social and occupational impairment, according
to the most recent GAF score. The Board finds the assessment
by Dr. Binns consistent with the assignment of a 50 percent
rating.
In conclusion, the Board finds that the evidence shows that
the reduction in the veteran's schedular disability rating
for PTSD from 100 percent to 50 percent, effective from April
1, 1998, was proper. Accordingly, restoration of a 100
percent schedular rating for PTSD is not warranted. The
evidence preponderates against the claim.
ORDER
Restoration of a 100 percent rating for PTSD, currently rated
50 percent, is denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
Department of Veterans Affairs